Likelihood of liability lawsuits in the age of COVID-19

Nearly a year into the COVID-19 pandemic, liability protections for health care providers remain unresolved at the federal level.

Health care and business groups, including the HCLA and its member organizations, have strongly pushed for legislation at the federal level that offers a uniform level of protection for front-line pandemic providers.

With the threat of liability lawsuits still looming on the horizon, it is incumbent for Congress to act to provide uniform COVID-19 protections to all of our health care professionals and facilities.

The HCLA is pushing ahead in its advocacy efforts in this regard. “We’re continuing to lobby for liability protections, but it will be difficult,” said Mike Stinson, vice president for government relations at the Medical Professional Liability Association and Chair of the HCLA, in an interview with Medscape.

The fear of many is that the lawsuits will begin as the height of the pandemic subsides and the efforts of health care heroes become somewhat of a distant memory. Likely to contribute to allegations against providers is the fact that families had limited communications with hospitalized patients and their physicians due to COVID-19 infection control efforts.

Some states have been quick to address the issue with legislation, while others have issued executive orders that may or may not stand up to legal challenges. Currently, the only protections offered at the federal level are through the very narrow Public Readiness and Emergency Preparedness (PREP) Act.

“I never advised anyone to assume that COVID-19 treatment [by physicians and hospitals] would get any kind of protection under the PREP Act,” Stinson said. “We need Congress to pass a national liability standard for providers.”

The HCLA will continue to work with leaders in the House and the Senate to reintroduce legislation in the 117th Congress that protects the livelihoods of those who provided care for millions of Americans in their time of need.

To read more about the likelihood of liability lawsuits as a result of COVID-19, click here.

Liability immunity extended for Arizona health care providers

Pandemic providers in Arizona have continued to be supported at the highest levels of the state, as liability protections were extended late last month.

Governor Doug Ducey renewed liability protections for front line medical personnel and facilities for a third time, with an executive order valid through March 31, 2021.

The order provides civil immunity to health professionals who make decisions and efforts in good faith in the treatment of COVID-19. The order covers licensed and volunteer health care professionals, emergency medical care technicians, state health care institutions, treatment facilities and other sites the state has designated as part of its pandemic response.

“We are fully committed to protecting Arizona’s health care heroes,” Governor Ducey said. “[The executive order] will ensure our medical professionals are protected when acting in good faith in emergency situations. We will continue to work with health care partners to provide support where it’s needed.”

The protections guard health care personnel from medical liability claims, with exceptions for gross negligence. For more details on Arizona’s protections of its health care personnel against medical lawsuit abuse in the midst of COVID-19, click here.

Fighting for Pennsylvania’s failed pandemic protections

For Pennsylvania providers, the pendulum has swung in the opposite direction, leaving them at risk of being targeted with liability lawsuits.

Curt Schroder, who was involved in drafting ‘targeted, tailored, and temporary’ liability legislation as part of his role as the executive director of the Pennsylvania Coalition for Civil Justice Reform, writes of the problems facing the state following the Governor’s veto of the legislature-passed bill.

Pennsylvania’s bill offered widespread liability protections for businesses, schools, and health care providers. “[These organizations] deserve protection for their efforts to continue providing the valuable services we depend on despite the unprecedented conditions they face during this difficult time,” Schroder stated in an op-ed in Law360.

Health care providers would have benefited from a number of protections in the bill, including not being held liable, absent gross negligence, recklessness, willful misconduct or intentional harm, for:

  • Treatment or testing of COVID-19 patients;
  • An act or omission caused by a shortage of equipment, supplies or personnel;
  • Harm directly resulting from the demand for testing and treatment of COVID-19 that was beyond the reasonable control of the provider;
  • And Compliance with public health directives regarding the testing and treatment of COVID-19.

It also clarified that protections covered actions that were in compliance with public health directives.

With dozens of states having enacted rigorous protections for pandemic providers, “Pennsylvania is an outlier in failing to protect those soldiering through the pandemic and hoping to survive economically until vaccines help us turn the corner.”

To read more about the overturned efforts in Pennsylvania and a renewed campaign in the year ahead, click here.